Hubert Chiwara v Zimbabwe Power Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/196/25
GWERU, 16 FEBRUARY 2025
CASE NO LC/H/666/24
AND 27 MAY 2025
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IN THE LABOUR COURT OF ZIMBABWE

GWERU, 16 FEBRUARY 2025

JUDGMENT NO LC/H/196/25

CASE NO LC/H/666/24

AND 27 MAY 2025

In the matter between:-

HUBERT CHIWARA	APPLICANT

Versus

ZIMBABWE POWER COMPANY	RESPONDENT

Before the Honourable B S Chidziva: Judge

For the Applicant

For the Respondent

Makuvaza (Legal Practitioner)

Mahachi (Legal Practitioner)

CHIDZIVA J:

This is an application for quantification of damages in lieu of reinstatement.

BACKGROUND FACTS

The appellant was employed by the respondent as a Finance Director in December 2007

as evidenced by his contract of employment filed of record. The applicant contends that he was

unlawfully dismissed from employment by the respondent after a disciplinary hearing effective

30 March 2020, as evidenced by the letter of dismissal filed of record. He contends that he

challenged the decision of the employer to dismiss him before this Court and in the Supreme

Court which ruled in his favour on the 7th of March 2023 and his dismissal was set aside. He

avers that it was ordered by the Supreme Court that he be reinstated without any loss of salary

and benefits from the date of dismissal. He further contends that the Supreme Court ordered

that, in the event that reinstatement was no longer possible, he was to be paid damages in lieu

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of reinstatement. The damages were to be agreed upon by the parties or failing such agreement,

they were to be quantified on application to this Court.

The applicant states that pursuant to the order of the Supreme Court, he approached the

respondent seeking reinstatement or alternatively damages in lieu of reinstatement. It is

submitted that the respondent indicated that reinstatement was no longer possible and they

asked the applicant to come up with a proposed quantification. The applicant contends that,

through his lawyers, he furnished the respondent with his proposed quantification which was

rejected. The applicant contends that on the on 13th of November 2023, the respondent offered

their proposed quantification in the sum of ZWL$156 516 136.60 being their quantification of

back pay only, which the applicant rejected. Thus, the applicant avers that both parties failed

to agree on the back pay and benefits, and damages, as each maintained their proposed

quantification resulting in a deadlock. The applicant contends that he now requires the

intervention of this court as ordered by the Supreme Court.

RELIEF SOUGHT

The relief sought by the applicant is as follows;

WHEREFORE applicant (sic) prays that: -

1) The Respondent shall pay Applicant the sum of USD$I 824 l2l.7l being arrear salaries

and benefits, damages in lieu of reinstatement, compensation for motor vehicle and

ipad, cellphone and laptop replacement payable 40% in United states Dollars and 60%

in ZiG at the prevailing bank rate on the date of payment.

2) The Applicant shall also be given 205 100 kw of electricity units.

3) The Respondent shall pay Applicant's costs of suit on an Attorney and client scale.

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POINTS IN LIMINE

(a) The answering affidavit is improperly filed.

The respondent raised a point in limine to the effect that the answering affidavit filed by the

applicant was improperly filed. The applicant conceded to the preliminary point raised by the

respondent. He submitted that there was no need to detain the court on the preliminary point.

The court, through the consent of both parties, expunged the answering affidavit from the

record of proceedings.

(b) There are material disputes of fact.

Counsel for the respondent also raised an issue that he felt that there were material disputes

of fact which required his client to be present in court and which require oral evidence to be

adduced before the court. The court questionedthenatureof the evidence the respondent sought

to lead orally considering the fact that both parties had filed written submissions. The

respondent highlighted that the material disputes of fact emanated from the issue that the

applicant alleged that he did not receive payment for damages as the account to which the

respondent deposited the money was no longer operational. The respondent submitted that the

applicant claimed that his reputation was damaged because of the dismissal and there was a

value attached to reputation, hence the respondent contended that viva voce evidence had to be

led to prove what that evidence entailed.

In response, the applicant contended that he had filed all the necessary papers to prove

his case and he had no intention to give oral evidence. The court decided that it did not see the

reason why the matter should not proceed based on that fact that the applicant was not in

attendance.

THE MERITS

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APPLICANT’S SUBMISSIONS

The applicant contended that it is common cause that the application before the court

is for quantification of damages where he is claiming US$1 824 121.74 (one million eight

hundred and twenty-four thousand and twenty-one and seventy-four cents. It was submitted

that the amount claimed was broken down in such a manner that forty-percent was payable in

United States Dollars and sixty-percent of it was payable in the local currency at the prevailing

bank rate at the date of payment. The court intervened to question how the applicant came up

with the percentages and why they were saying the money should be paid forty percent in local

currency and 60 percent in foreign currency. Theapplicant averred that the currency conversion

from the Zimbabwean dollar to the United States Dollar is the most appropriate one. It was

submitted that the applicant’s damages could not be computed in ZiG since the ZiG was not

legal tender when the applicant was unlawfully dismissed in April 2020 and when his

reinstatement was ordered in April 2023. It was contended that if the applicant was to be paid

in RTGS dollars or Zimbabwean dollars which are no longer legal tender in Zimbabwe, it

would be prejudicial to him. It was submitted that the formula to be used was to convert the

applicant’s Zimbabwean dollar salaries and benefits to the United States Dollars using the

readily available Zimbabwean dollar and United States dollar exchange rates which were

prevailing between April 2020 and April 2023. It was averred that this formula makes it very

easy to convert the RTGS that the applicant was earning into United States Dollars using the

prevailing bank rate applicable at each payment date and to then convert his damages from the

United States Dollars and to the ZiG using the current exchange rate between the United States

Dollar and the ZiG at the date of payment. It was averred that the applicant was claiming forty

percent of the damages in United States Dollars and sixty percent in line with the payment

regime of ZESA Holdings where the respondent is a subsidiary.

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The applicant contended that he is entitled to all contractual allowances and benefits

he lost as a result of the unlawful termination of his contract by the respondent. It was

contended that the respondent’s argument that the applicant was not entitled to allowances such

as holiday allowance, covid allowance, cafeteria allowance, bonus, business entertainment,

mobile phone and airtime and unlimited car fuel simply because he was not reporting for duty

was devoid of merit. It was submitted that the court ought to find that the applicant was entitled

to all these allowances. It was further submitted that the payment of bonus to the applicant was

not performance based as alleged by the respondent, rather it was paid unconditionally. It was

averred that the applicant had been receiving his bonus since 2007 when he was employed by

the respondent and he had no targets or objectives which he had to meet first before getting a

bonus. It is contended that he received a bonus in November 2019 while he was on suspension

and the respondent did not provide evidence that the bonus the applicant was entitled to was

performance based.

The applicant denied receiving a payment from the respondent in the sum of the sum

of ZWL 76 159 119.00 [seventy-six Million one Hundred and Fifty-Nine Thousand One

Hundred and Nineteen Zimbabwean Dollars]. He submitted that the account the money was

deposited into was no longer operational and evidence to that effect was filed of record. It was

averred that the only money the applicant received was ZWL $29 952.60 which was for motor

vehicle compensation which was paid into the applicant’s Stanbic Bank account which is

operational. It was contended that the respondent ought to have asked for the correct bank

details of the applicant before they deposited the seventy-six million, one hundred and fifty-

nine they claim to have paid. It was submitted that after the applicant received the ZWL $29

952.60 which was for motor vehicle compensation, he had informed the respondent that they

had wrongly calculated his compensation on the basis that he was supposed to get a Toyota

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Prado which was fit for employment grade (EL2) as he was using a BT 50 which was not in

line with the motor vehicle policy of the respondent considering it was a vehicle award to a

grade lower than him (D4). The court inquired into the price of the Toyota Prado and the

applicant submitted that the price of the Toyota Prado was US$110 0000. He stated that the

motor vehicle policy stipulated that an individual who was not allocated a Toyota Prado was

supposed to be compensated US$ 34 034.

It was further contended that the applicant has a legal right to motor vehicle

compensation created by the ZESA Holdings Board Resolution read together with the ZESA

Holdings Motor Vehicle Policy. It was submitted that the respondent cannot claim that it is a

separate entity from ZESA Holdings because the respondent is a wholly owned subsidiary. It

was further contended that the ZESAHoldings Motor VehiclePolicy applied to its subsidiaries,

including the respondent, hence the respondent cannot distance itself from the ZESA Holdings

Board Resolution. It was further contended that the applicant’s letter of dismissal was written

on a ZESA Holdings letterhead, hence the respondent cannot distance itself from ZESA

Holdings.

It was further contended that the applicant should be compensated for loss of

employment from the date of dismissal up to the age of retirement being 60 (sixty) years. It

was contended that the respondent unlawfully dismissed the applicant from employment in

April 2020 when he was around 50 (fifty) years old and it declared in April 2023 that his

reinstatement was no longer possible when he was 53 years old. It was submitted that, in regard

to his age, had he not been unlawfully dismissed, he ought to have worked until he was 60

years old and retire afterwards. It was submitted that the applicant was claiming damages in

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lieu of reinstatement for a period of 129 months (10 years, 9 months) covering the date of

dismissal up to his retirement age. It was averred that the applicant did not sit down and do

nothing when he was dismissed from employment. It was contended that he tried to mitigate

his loss by looking for alternative employment as evidenced by rejection emails filed of record.

This court was urged to find that the applicant was entitled to damages in lieu of reinstatement.

RESPONDENT’S SUBMISSIONS

The respondent contended that the applicant’s calculation of damages as pleaded in the

founding affidavit was improper. It was averred that the onus was on the applicant to prove his

damages. It was contended that while the respondent does not dispute the fact that the applicant

is entitled to damages, it submitted that the applicant had failed to prove that he was entitled to

damages in United States Dollars. It was submitted that the manner in which the applicant had

calculated damages due to him was not in accordance with the tenets of the law or principles

of justice. It was submitted that there was no need for an expert witness to assist in

quantification of damages in instances where there was fluctuation in currencies, rather there

is case law which has guiding principles on quantification of damages in lieu of reinstatement.

It was submitted that at the time of the applicant’s dismissal, he was being paid in local

currency, yet he claimed forty percent of the damages in United States Dollars, but payable in

local currency at the prevailing bank rate on the date of payment. It was contended that the

applicant had no clear justification as to why he was entitled to damages in United States

Dollars when he was receiving his salary in local currency. It was submitted that it is settled

law that rates applicable in calculating damages in lieu of reinstatement are those that applied

at the time of dismissal. It was submitted that the applicant’s basis for claiming damages in

United States Dollars was for purposes of preserving the value of damages. It was contended

that the respondent trades in local currency hence they were also affected by inflation, thus the

applicant wants to enrich himself at the expense of the respondent. It was contended that the

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applicant’s claim in as far as it was denominated in United States Dollars was without basis

and ought to be dismissed.

The respondent conceded to the fact that the applicant never received the payment in the

sum of seventy-six million, one hundred and fifty-nine Zimbabwean dollars which the

respondent had initially highlighted that it had deposited and provided proof of payment. They

submitted that they attempted to make payment however the funds were returned to their

account.

It was averred that damages in lieu of reinstatement are meant to place the employee in

the place they would have been had their contract not been prematurely terminated and to

compensate them for their loss. It was submitted that they do not exist to punish the employer

but simply to achieve justice and fairness. It was contended that damages in lieu of

reinstatement operate retrospectively meaning the quantification of damages ought to be

calculated using the salary and benefits he would have from the time of reinstatement up to the

time he is reasonably expected to have found alternative employment. It was submitted that the

applicant had calculated his damages in such a way that he gets more than he would have

received had the contract of employment not been terminated. It was averred that this results

in unjust enrichment and causes undue hardship to the respondent, hence the damages cannot

be awarded. The respondent prayed that the court grant damages in terms of its calculation

which is line with the law and the principles of justice. It was submitted that, as per the law,

damages in lieu of reinstatement must be proven through the leading of oral evidence so that

the party claiming such damages can prove entitlement to same. It was averred that the

arbitrator erred when he failed to call for oral evidence when the parties had agreed to make

oral submissions. It was averred that it is legally untenable and irregular for the court to award

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damages by merely perusing the parties’ written submissions without hearing evidence from

witnesses verbatim in a face to face hearing. It was contended that benefits such as laptop,

mobile phone, airtime allowance, ipad, fuel allowance, cafeteria allowance, bonus, and

business entertainment should be excluded in the computation of the applicant’s back pay

because they are operational benefits. It was submitted that operational benefits are tools of

trade, meaning to say they are accessible when a person reports for duty. It was contended that

the applicant was not reporting for duty hence he is not entitled to operational benefits and his

claim should be dismissed with costs.

It was submitted that the applicant’s failure to mitigate his loss by looking for alternative

employment cannot be faulted on the respondent. It was submitted that the applicant had a duty

to look for alternative employment, within a reasonable time period, that is in six months. It

was averred that the employment was dismissed from employment when he was 50 years old

hence he was far from retirement and he could have been employed in another organization

considering his experience and skill competency. It was contended that his claim for damages

up to retirement age is not justified and can simply be seen as a plot to be unjustly enriched. It

was averred that the applicant used a selective criterion when looking for a job he ought to have

taken any employment opportunity that arose. It was submitted that the applicant’s claim to be

awarded damages up to retirement age is unjustified and ought to be dismissed.

It was contended that the applicant could not seek to rely on a Board Resolution from

ZESA Holdings in regard to motor vehicle compensation. It was contended that this was

because ZESA Holdings and the respondent are two separate entities with separate boards. It

was contended that the reason why the applicant’s appeal was upheld in the Supreme Court

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resulting in the order for reinstatement was that the court found that ZESA Holdings had no

authority to institute disciplinary proceedings against the applicant who was the respondent’s

employee. It was submitted that the applicant was now contradicting himself by seeking to rely

on a Board Resolution by ZESA Holdings but objected to being disciplined by ZESA Holdings

hence he cannot approbate and reprobate. It was contended that the applicant’s claim for

compensation in terms of the ZESA Holdings Board Resolution was misplaced and without

basis hence it ought to be dismissed with costs. It was submitted that the respondent was willing

to pay the damages in lieu of reinstatement in local currency as per its calculation and the

respondent prayed that this application be granted in terms of its calculations with costs.

ISSUE FOR DETERMINATION

The issue for determination in this matter is as follows:-

Whether or not the present application for quantification of damages in lieu of

reinstatement succeeds or not, it if succeeds does it succeed as it is or with amendments.

ANALYSIS

Section 89(2)(c) (iii) of the Labour Court Act [Chapter 28.01] address the concept of

damages in lieu of reinstatement, it provides that, in the exercise of its functions, the Labour

Court, may order

(iii) reinstatement or employment in a job

Provided that—

(i)	any such determination shall specify an amount of damages to be awarded to the

employee concerned as an alternative to his reinstatement or employment;

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The law applicable to quantification of damages in lieu of reinstatement is not alien in

our jurisdiction. The case of Gauntlet Security Services v Leonard 1997 (1) ZLR 583 (S)

explains the concept of damages in lieu of reinstatement. GUBBAY CJ (as he then was) stated

that,

“The employee is entitled to be awarded the amount of wages or salary he would have earned

save for the premature termination of his contract by the employer. He may also be

compensated for the loss of any benefit to which he was contractually entitled and of which he

was deprived in consequence of the breach. But the employee must mitigate his loss. He must

look for and accept any reasonable offer of alternative employment. He cannot just do

nothing…if he fails to take another employment when it would have been reasonable for him

to do so, a dedication will made in respect of the remuneration he would have earned from the

substituted employment”.

In view of the above authority, it falls upon the court to determine whether the

application for quantification of damages in lieu of reinstatement succeeds as it is or with

amendments. The applicant submitted that he should be paid damages, in the ratio of forty

percent in United States Dollars and sixty percent local currency because the RTGS and

Zimbabwe dollar that was in use at the time was no longer legal tender and the ZiG was not

legal during that period hence the money claimed should converted to United States Dollars.

The respondent disputed this on the basis that the applicant was getting his salary in local

currency ever since he was employed in 2007, hence it would not make sense for him to claim

that he should be paid in United States Dollars even though it is forty percent.

In the case of Mapondera and 55 Others v Fredda Rebecca Gold Mine Holdings SC

81/22 it was held that,

“It is self-evident that s 90A of the Act distinguishes ordinary courts of law from the Labour

Court as a special court. The law maker therefore saw it fit to confer the Labour Court with a

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wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial

justice”

It is this court’s view that the Labour Court has its foundations in industrial justice and

adheres to principles of social justice based on equitable labour standards. The court is not

convinced with applicant’s submission that he should be awarded damages in such a manner

that he gets forty percent in United States Dollars and sixty percent in local currency. The

reasons proffered by the applicant are not sufficient for this court to award that claim, as there

is no case law which breaks down amounts of damages into percentages and directs payments

in local and foreign currency. However, it is important to note that this court takes judicial

notice of the effects of the currency changes in Zimbabwe. Hence, to say that the applicant

should be paid in RTGS or Zimbabwe Dollar which is no longer in existence would prejudice

him. In the case of Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation HC 3074/04 in

regard to judgments sounding in foreign currency it was held that:

“It is the plaintiff’s prerogative to claim in a currency that will most truly express his loss and

accordingly most fully and exactly compensate him for that loss. However, in order to succeed

a claimant is required to lay a foundation that supports his claim”.

Given the above, the applicant has failed to lay a foundation for their claim, their reasons

include preservation of value of the damages and the fact that RTGS and Zimbabwe dollar are

no longer legal tender. This is understandable, however as rightly argued by the respondent,

the ZiG is now legal tender and since the applicant was paid in local currency throughout his

career, he should be paid the damages in local currency at the prevailing bank rate on the date

of payment. The applicant submitted a formula where he suggested converting hisZimbabwean

dollar salaries and benefits to the United States Dollars using the readily available Zimbabwean

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Dollar and United States dollar exchange rates which were prevailing between April 2020 and

April 2023 then convert the United States Dollars to the ZiG.

In Aaron’s Whale Rock Trust v Murray and Roberts Ltd and Another 1992 (1) SA 652

at 655 BERMAN J said:

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to

adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be

done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so

as to enable the Court to quantify his damages and to make an appropriate award in his favour.

The Court must not be faced with an exercise in guesswork; what is required of a plaintiff is

that he should put before the Court enough evidence from which it can, albeit with difficulty,

compensate him by an award of money as a fair approximation of his mathematically

unquantifiable loss.”

The applicant has adduced evidence before this court with clear mathematical precision

in regard to the forty percent and sixty percent claims, however he has sufficiently failed to

convince this court how he came up with such a distinction. This court, therefore, finds the

applicant’s averments in this regard without merit.

This court’s view is that the applicant can simply convert the RTGS or Zimbabwean

dollar salaries and benefits to the ZiG which is now legal tender in Zimbabwe. This is because

the applicant was being paid in local currency throughout his career and as rightly argued by

the respondent, they pay their employees in ZiG hence the applicant is no exception. In case of

Olivine Industries (Pvt) Ltd v Nharara 2006 (1) ZLR 203 (S) Cheda J held that:

“The respondent can only be compensated by an amount that should be calculated at the rates

applicable at the time and not at today’s rates or some future unknown rates. An order for

payment at today's rates is vague and inappropriate in the circumstances. Today’s rates will

obviously be very different from the rates that prevailed at the time”

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Further, in the case of Samanyau & Ors v Pleximail (Pvt) Ltd 2011 (1) ZLR 527 and in

Mpofu v Commissioner of Police & Anor 2010 (2) ZLR 389 (H) it was however held that:

“If rates applicable at the time were in a currency no longer in use, damages will be assessed in

the currency in use at the time of the assessment”

Therefore, the applicant should be paid in local currency.

Regarding contractual allowances and benefits or operational benefits, the applicant

contended that he is entitled to all contractual allowances and benefits he lost as a result of the

unlawful termination of his contract by the respondent. He contended that the respondent’s

argument that he is not entitled to allowances such as holiday allowance, covid allowance,

cafeteria allowance, bonus, business entertainment, mobile phone and airtime and unlimited

car fuel simply because he was not reporting for duty was devoid of merit. The respondent

argued that that the applicant was not reporting for duty hence he was not entitled to operational

benefits, as they are tools of trade that are used when one is reporting for duty.

Given the above, the court makes a finding that, as rightly argued by the respondent,

the applicant cannot claim contractual allowances and benefits based on operational benefits.

These are benefits which an employee is entitled to while on duty, if he is not on duty as was

in this case, it is this court’s view that the employee has no use for operational benefits and is

not entitled to have them. Therefore, it is this court’s view that the claim by the applicant that

he is entitled to contractual allowances and benefits which are also operational benefits is

without merit.

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The applicant contended that, while the respondent claimed to have deposited the sum

of ZWL 76 159 119.00 [seventy-six million one hundred and fifty-nine thousand one hundred

and nineteen Zimbabwean Dollars] into his account and provided proof of payment, he did not

receive the funds. The applicant submitted that the account the money was deposited in was no

longer operational and evidence to that effect is filed of record. The respondent conceded to

the fact that it did attempt to deposit the money into the applicant’s account however the funds

did not go through and were returned to their account

It is this court view that the respondent never deposited any money into the applicant’s account

hence he should receive the entitled to full.

The applicant further submitted that the respondent cannot claim that it is a separate

entity from ZESA Holdings becausethe respondent is a wholly owned subsidiary. Itwas further

contended that the ZESA Holdings Motor Vehicle Policy applied to its subsidiaries including

the respondent, hence the respondent cannot distance itself from the ZESA Holdings Board

Resolution. The applicant argued that his letter of dismissal was written on a ZESA Holdings

letterhead hence, the respondent cannot distance itself fromZESA Holdings. On the otherhand,

the respondent contended that they were a separate entity from, ZESA Holdings with separate

boards. It was contended that the reason why the applicant’s appeal was upheld in the Supreme

Court resulting in the order for reinstatement was that the Court found that ZESA Holdings had

no authority to institute disciplinary proceedings against the applicant who is the respondent’s

employee. It was submitted that the applicant is now contradicting himself by seeking to rely

on a Board Resolution by ZESA Holdings but objected to being disciplined by ZESA Holdings

hence he cannot approbate and reprobate.

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It is this court’s view that both parties are trying take advantage of one another based

on technicalities and dragging this court in between. In the case of Mazambani v International

Trading Company (Private) Limited and Anor SC 88/20, MATHONSI JA had occasion to say:

“This is a court of justice which is required to resolve the real issues between the parties. It

should not dabble to much into small technicalities”

Given the above, it is important to note that in as much the respondent tries to distance

itself from ZESA Holdings, in this regard the applicant’s claim has merit, and the technicality

that the respondent is relying on has no leg to stand on. If the respondent was a separate entity

from ZESA Holdings as it claims, it would not have deposited the sum of ZWL $29 952.60

into the applicant’s account acknowledging that it was motor vehicle compensation. If the

applicant was not entitled to any motor vehicle allowance, why then did the respondent proceed

to pay the respondent such compensation using the guidance of the ZESA Holdings Motor

Vehicle Policy. It is important to note that there is no proof to the effect that the respondent

used their own motor vehicle policy different from the one formulated by its owner, ZESA

Holdings. Hence, the claim by the applicant that he has a legal right to motor vehicle

compensation created by the ZESA Holdings Board Resolution read together with ZESA

Holdings Motor Vehicle Policy is with merit.

The applicant further argued that he should be compensated for loss of employment from

the date of dismissal up to the age of retirement being 60 (sixty) years. Theapplicant is claiming

damages in lieu of reinstatement for a period of 129 moths (10 years 9 months) covering the

date of dismissal up to his retirement age. The applicant alleges that he did not sit down and do

nothing when he was dismissed from employment. He contended that he tried to mitigate his

loss by looking for alternative employment as evidenced by rejection emails filed of record.

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However, the respondent argues that the applicant’s failure to mitigate his loss by looking for

alternative employment cannot be faulted on the respondent. It was submitted that applicant

had a duty to look for alternative employment, within a reasonable time period, that is in six

months. The respondent averred that he was dismissed from employment when he was 50 years

old hence he was far from retirement and he could have been employed in another organization

considering his experience and skill competency. It was contended that his claim for damages

up to retirement age is not justified and can simply be seen as a plot to be unjustly enriched. It

was averred that the applicant used a selective criterion when looking for a job he ought to have

taken any employment opportunity that arose.

In the case of Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 S it was held that,

“I think it is important that this court should make it clear once and for all, that an employee

who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled

to sit around and do nothing. He must look for alternative employment. If he does not, his

damages will be reduced. He will be compensated only for a period between his wrongful

dismissal and the date when he could reasonably be expected to find employment.”

In the case of Olivine Industries (Pvt) Ltd v Nharara 2006 (1) ZLR 203 (S) it was held that,

“Money earned ‘repairing cellphones and selling tomatoes’ was a proper consideration for

mitigation and had to be taken into account”

The learned author, Lovemore Madhuku,in his book, Labour Law in Zimbabwe, 2015

on page 253 posits that held that,

“……….an employee may only be said to have breached the duty where he or she fails to

look for and accept any reasonable offer of alternative employment. Everything hinges on

“reasonableness”. What is reasonable in this instance? The answer is that whether or not

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anything is reasonable is a finding of fact by the court and this depends on the circumstances

of each case”.

Given the above, the court agrees with the respondent that alternative employment does

not only mean professional jobs, it is any job that is able help an individual generate income.

The court further agrees with the respondent that when the applicant was dismissed from

employment, he had a decade left before retirement and given his expertise and experience, he

was still able to secure a new job. It is this court’s view that the applicant’s claim for damages

in lieu of reinstatement for a period of 129 moths (10 years 9 months) covering the date of

dismissal up to his retirement age is farfetched and unreasonable. Therefore, it is this court’s

view that the applicant be paid damages in lieu of reinstatement for a period of 12 months,

which, at the court’s discretion, is a reasonable period for an individual to have secured

alternative employment.

DISPOSITION

In summation, the applicant and the respondent clearly could not agree on most of the issues

in this matter. The court did not agree with the respondent’s claim that damages should be paid

forty percent in United States Dollars and sixty percent in local currency. The applicant had no

basis for this claim, it was a formula with no legal basis considering that he was paid his salary

in local currency. The court agreed with the applicant that he was entitled to motor vehicle

compensation because the respondent deposited money into the applicant’s account claiming

it was for that purpose, hence they cannot turn around and say we are not supposed to pay that

money. However, the court did not agree with the respondent that he was entitled to damages

calculated from the date he was dismissed from employment till the date he was set to retire,

which is a period of 10 years. The court found this far-fetched and unreasonable, as ideally,

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mitigation of loss should influence the amount of damages. In this instance, the applicant could

not secure employment because he only looked for professional jobs. In that regard, the court

finds that 12 months would be a reasonable period to have acquired alternative employment.

This means that the applicant is entitled to damages in lieu of reinstatement calculated as

follows, 12 months x ZiG 33 680 (basic salary per month) totalling ZiG 404 160. In regard to

the currency dispute where the applicant claims a certain percentage of the money in United

States Dollars, the court finds that it can be paid in ZiG which is the current legal tender in

Zimbabwe, this would be historically familiar to the client as he was paid his salary in local

currency.

Accordingly, it is ordered as follows:

1) The respondent shall pay damages in lieu of reinstatement in sum of ZiG 404, 160

2) The respondent shall pay the sum of US $18 058.08 being compensation for motor

vehicle allowance.

3) There shall be no order as to costs

Makuvaza and Gwamanda Attorneys, Applicant’s Legal Practitioner

Muvingi Mugadza Legal Practitioners, Respondent’s Legal Practitioner

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